Tuesday 23 January 2018

Driver fatigue was cause of fatal crash says judge

Four year suspended jail term for driver and a lifetime ban

Gerry Higgins leaving Sligo Courthouse after receiving a suspended sentence
Gerry Higgins leaving Sligo Courthouse after receiving a suspended sentence

Paul Deering

A driver who collided head-on into a car while on the wrong side of the road killing an 84-year-old man had fallen asleep, a Judge who gave him a suspended four year jail term said at his sentencing hearing at Sligo Circuit Court.

Gerry Higgins (57), of McGuinness Court, Aclare was also banned from driving for life. An elderly couple from Ballinamallard, County Fermanagh, Thomas (84) and Marie Flanagan (78) were on their way to their holiday home in Enniscrone when Higgins who was driving a Peugeot Partner Van came around a bend completely on his wrong side of the road and crashed into them at around 12.30pm at Lugnadeffa, Ballisodare on the main Sligo to Ballina road on St Patrick's Day 2017.

Higgins was slumped over in the passenger side of his van as he rounded the bend. The force of the impact pushed the Toyota Auris the Flanagans had been in over a wall and into a drain. He pleaded guilty to dangerous driving causing the death of Mr Flanagan who was a front seat passenger in his wife's car. A second count of dangerous driving was taken into account by the Judge.

Higgins whose erratic driving had been noted some minutes earlier when another collision was narrowly avoided told Gardaí he had no explanation for the crash. He pleaded guilty to dangerous driving causing death and a second charge of dangerous driving.

On Thursday last, Judge Johnson said it would seem most likely that Higgins was excessively tired and accordingly should have rested before proceeding on his journey that morning to Letterkenny to see his girlfriend, Margaret Boyce.

"The fact that the accused had a near accident a short time before the fatal crash should have alerted him to the fact he was excessively tired and therefore he should have pulled in, rested and possibly taken some sustenance. The accused has indicated he has absolutely no recollection of the two offences. This has to be a source of concern and it was for this reason that I determined at the sentencing hearing that he was not a fit person to hold a driving licence and therefore I imposed a lifetime disqualification on him," he said.

Judge Johnson said he was satisfied the accused was not searching for his phone at the time of accident having possibly dropped it while on a call to his girlfriend. He said Ms Boyce hadn't noticed anything untoward in respect of the call. The second possibility was that the accused had a medical emergency and blacked out but a medical report stated that type 11 diabetes of itself would not cause low blood sugars leading to a blackout.

The Judge pointed out that according to the RSA, driver fatigue was a contributory factor in one in five driver deaths in Ireland. The RSA also reported that tired-related collisions were three times more likely to be fatal or result in serious injury because of their high speed impact and lack of avoidance action.

"In this particular case there was evidence that the accused was driving at an excessive speed in the incident that was a near miss and that at the time of the fatal accident he took no evasive action," said Judge Johnson.

The Judge stressed that out of deference to the late Mr Flanagan and for the protection of the public at large, the message needed to go out loud and clear that if you feel tired or sleepy you should pull up, take a rest, have a snack and take a short walk before you get back into your car and recommence your journey.

"I appreciate that with the fast pace of modern life, people often find it difficult to slow down and moderate their activities. This accident illustrates in the most tragic way the consequences that can flow from a driver failing to heed their body;s natural demand for sleep," said Judge Johnson.

Earlier, he recalled how ten kms away at Rathurlisk, Templeboy shortly before the fatal collision, the accused had been observed narrowly missing an oncoming vehicle and which was the subject of the second count of dangerous driving.

The Judge said the Victim Impact Statement of Mrs Flanagan set out in graphic detail the harrowing and tragic effect the accident had on her and her family. Her husband of 57 years was a wonderful husband, father and grandfather and she missed his company every day and she described him as being at the centre of the family.

"She quite rightly says that Thomas's death has left a void that cannot be filled," said Judge Johnson. He said that one could not be impressed at Mrs Flanagan's stoicism and bravery and he was also impressed that she never expressed any feelings of anger towards the accused. This showed remarkable forbearance, he said.

He said the aggravating factors in the case included the fact he couldn't but have been aware that he was not in a fit state to drive after the near miss which occurred shortly before the fatal crash and the fact there were two incidents of dangerous driving some 10 kms apart.

The consequences of the accident and the dangerous driving were an extremely aggravating factor fact. Mr Flanagan lost his life and his wife received very serious life changing injuries. In addition his family were devastated and the loss of their father and grandfather. The accused had one previous conviction for being drunk in charge which occurred in 2012 and was apparently the result of the accused falling asleep behind the wheel of a car on the hard shoulder, said the Judge. Outside of this he didn't have any previous convictions of any consequence.

The mitigating factors included the early guilty plea, his heartfelt remorse, the fact he sustained serious injuries himself and will need crutches for the rest of his life. An analysis of his blood and urine indicated there were no drugs or alcohol in his system at the time of the accident.

Judge Johnson said a lifetime ban was a significant punishment in itself and would clearly restrict the accused's ability to earn a living and indeed to look after himself. However, the ban was necessary not only to protect other road users but also the accused.

The Judge noted the accused was in custody for over a week which would have been difficult for him and was done to reflect the gravity of the offence rather than to punish him.

The Judge noted that in a Court of Appeal judgement from February 2017 the court suspended a two-year sentence imposed on a driver who fell asleep resulting in the death of a young mother. The court found that a two year jail term was unduly harsh and sufficient weight was not attached to the totality of the mitigating factors.

He said he was satisfied a four year sentence was appropriate and suspended for ten years with the accused entering a bond to keep the peace and be of good behaviour for ten years.

He said the Flanagan family may feel the sentence is too lenient in that the accused will not suffer any additional time in prison but he firmly was of the view that further incarceration given the serious injuries he sustained will not serve the interests of justice.

"It is clear to me the accused has suffered considerable punishment as a result of the injuries he sustained together with the fact he has been deprived of his driving licence for the rest of his life. In addition , the accused is clearly remorseful for what he has done and knows that he has to live with that for the rest of his life.

"While I appreciate the punishment suffered by the accused pales into insignificance compared to the hurt and pain sustained by the Flanagan family, I am firmly of the view that the interests of justice would not be served were I to impose a sentence that sought to imposed a harsh punishment on the accused. I also believe from what I have seen in the Victim Impact Statement and what I have heard about the late Mr Flanagan that he was a man of reason, fairness and forgiveness. It is clear he was role model to the Flanagan family and it is clear Mrs Flanagan endorsed fully the values of which her late husband led his exemplary life. I don't believe the late Mr Flanagan would want any more suffering to be endured by any of the parties as a consequence of this sentence."

Sligo Champion

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